It has been a relatively slow week for ADA accessibility filings in North Texas, with only one new lawsuit against a strip center in Plano. However, that new lawsuit provides a nice case study of the kinds of legal issues these cases raise.

The problems of standing mentioned in my last post are present in abundance. The plaintiff alleges that she went to the shopping center to visit a restaurant and “ran into” architectural barriers at the center. It is clear from the complaint itself that she didn’t run into all the barriers to access that she lists. For example, she claims that there is no accessible route to the center from the nearest public sidewalk and that there is not adequate accessible parking. If she took a car, then the public sidewalk wasn’t a problem for her. If she took a bus then the parking didn’t matter. She might have been injured by one kind of discrimination or the other, but not both. There are also general allegations of excessive slopes and a lack of accessible routes to “many of the businesses.” Since the plaintiff states that she visited the center to go to a specific restaurant the lack of accessible routes to other businesses could not have caused her any injury.

These kinds of standing issues exist in most shopping center cases; especially cases against strip centers where the typical customer drives up to patronize a single store. There may be practical reasons to litigate all the ADA issues in one lawsuit, but this particular plaintiff cannot honestly claim she has been injured by barriers she did not encounter and probably never will encounter. In fact, notably lacking in the complaint is any allegation that she was unable to patronize the restaurant of her choice. Most courts don’t have any problem holding that a person with a mobility disability does not have standing to sue for barriers that affect only the blind because there can be no injury from such barriers. The same principle, when combined with the requirement that a plaintiff be likely to return, should mean that a plaintiff cannot sue for barriers to access at stores she will never patronize, or parts of any store she will not use.

This lawsuit also raises the question of intent to return, a requirement for standing to seek injunctive relief. In this particular case the plaintiff is a local self-styled disability rights advocate who has filed more than a hundred lawsuits, so there isn’t much doubt she lives somewhere in North Texas. Whether she is a likely patron of a particular strip center in northwest Plano is a different matter. Strip shopping centers draw primarily from residents within a few miles of their location because, with the possible exception of a specific restaurant, their tenants do not provide unique goods or services. In the world of strip shopping centers fifteen or twenty miles is as far away as two hundred in terms of likely return.

The complaint also raises an important legal question; that is, whether failure to comply with the accessibility guidelines necessarily creates a barrier to access. The complaint appears to be based on the theory that the ADA guidelines define accessibility. This is a favorite argument among ADA plaintiffs, but it is clear both as a legal and practical matter a failure to follow the guidelines does not necessarily create barriers to access. The number and location of accessible parking spaces provided for in the guidelines might be excessive in a strip center that is mostly vacant, as many are. At least one court has recognized that for pre-1992 construction the underutilization of a facility justifies the conclusion that it doesn’t need as much accessible seating. If there is only one accessible parking space, but it is almost never occupied, then the lack of more accessible spaces is not a barrier to access. The lack of an accessible route through the facility, although it is required by the guidelines, may not be a barrier to access in a strip center where there is accessible parking close to every store. For properties built before the effective date of the ADA what constitutes a barrier to access requires consideration of how the property is actually used and how the plaintiff intended to use it.

There is also an important pleading issue. The complaint specifically refuses to state exactly what barriers to access the plaintiff actually encountered or to give any specifics as to the location and nature of the barriers themselves. Instead it promises to provide details “after discovery,” which simply means the plaintiff doesn’t yet know which barriers exist but hopes to find them. While many courts allow a plaintiff to take discovery in order to find new barriers to access, even the minimal requirements of notice pleading require that the known barriers be specifically identified. However, it is against the interest of the plaintiff’s counsel to describe the barriers because if they are corrected the case may become moot before attorney’s fees are earned.

Despite these defects in the petition, it is important to remember that in almost every strip shopping center there are some barriers to access whose removal could be reasonably achieved. The yin to the yang of vague pleadings and standing issues is the fact that many property owners still do not take their obligations under the ADA seriously until there is a lawsuit. In this case the lawsuit alleges that a pre-suit demand was made and nothing was done. It is difficult to have much sympathy for a property owner who, when notified of accessibility problems, made no effort to correct those whose correction was easy to achieve. The most liberal decisions on standing and pleading seem to come from situations in which it was clear that the property owner simply didn’t take his legal responsibilities seriously, just as the strictest holdings come in cases where there is clearly an aspect of abuse by the plaintiff. “Hard cases make bad law” probably explains why it has been so hard for the courts to agree on uniform principles for standing, pleading and similar issues.

Richard M. Hunt

Hunt Huey PLLC defends businesses in ADA and FHA accessibility lawsuits as well as advising businesses on how to avoid such lawsuits. For more information about our firm visit the Hunt Huey PLLC web site, hunthuey.com